Lymquartz Pty Limited v 2 Elizabeth Bay Road Pty Limited [2007] NSWSC 457

Lymquartz Pty Limited v 2 Elizabeth Bay Road Pty Limited [2007] NSWSC 457

The plaintiff failed to prove actionable misleading or deceptive conduct or relevant reliance. Although T1204 was represented as a one-bedroom apartment, the Goltsmans had seen and would have understood the laminated plan showing the apartment as built, including the sliding bedroom wall, so the representation was not misleading or deceptive in context and they were not misled. The alleged brick bedroom wall, separate kitchen, and brick walls representations were not proved. The brochure statements about a sense of space and liveability were mere puffery in their context and, in any event, reliance on them in relation to ceiling heights was not established. The plaintiff's claim was...

Jurisdiction
Australia
Judgment Date
09 May 2007
Procedural Posture
Claim for Relief for Alleged Misleading and Deceptive Conduct Under the Trade Practices Act 1974 (cth), With Cross Claim for Specific Performance of Contracts and Enforcement of Guarantees / Final Judgment After Hearing
Outcome
Plaintiff's claim dismissed. Cross-claim for specific performance and enforcement of guarantees upheld.
Legal Topics
['misleading or Deceptive Conduct' 'future Representations' 'real Estate Marketing Representations' 'off the Plan Apartment Purchase' 'puffery' 'specific Performance' 'guarantees']
['trade Practices' 'consumer Protection' 'property Law' 'equity'] ['misleading or Deceptive Conduct' 'future Representations' 'real Estate Marketing Representations' 'off the Plan Apartment Purchase' 'puffery' 'specific Performance' 'guarantees']

Case Brief

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Procedural Posture

Claim for Relief for Alleged Misleading and Deceptive Conduct Under the Trade Practices Act 1974 (cth), With Cross Claim for Specific Performance of Contracts and Enforcement of Guarantees / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the representation that apartment T1204 would be a one-bedroom apartment was misleading or deceptive because the bedroom wall was a sliding two part timber wall rather than a fixed wall.' 'Whether the selling agent represented that there would be a brick wall between the bedroom and living areas.' 'Whether statements in the marketing brochure that units would have interiors with a sense of space and be comfortable and easy and very liveable were mere puffery or actionable misleading or deceptive conduct concerning ceiling heights.' 'Whether apartment T1204 was represented as having a kitchen in a room separate from other rooms.' 'Whether the selling agent represented, expressly or impliedly, that all walls in apartment T1204 would be brick.' 'Whether the defendant was entitled on the cross-claim to specific performance of the sale contracts and enforcement of the guarantees.']

Ratio Decidendi

The plaintiff failed to prove actionable misleading or deceptive conduct or relevant reliance. Although T1204 was represented as a one-bedroom apartment, the Goltsmans had seen and would have understood the laminated plan showing the apartment as built, including the sliding bedroom wall, so the representation was not misleading or deceptive in context and they were not misled. The alleged brick bedroom wall, separate kitchen, and brick walls representations were not proved. The brochure statements about a sense of space and liveability were mere puffery in their context and, in any event, reliance on them in relation to ceiling heights was not established. The plaintiff's claim was...

Court Disposition

Plaintiff's claim dismissed. Cross-claim for specific performance and enforcement of guarantees upheld.

Orders

  • ["The plaintiff's claim is dismissed with costs." 'Declaration that the cross-claimant is entitled to have the contract dated 6 November 2003 for the sale of apartment T1204, 2 Elizabeth Bay Road, Elizabeth Bay, New South Wales, being part Lot 10 in Deposited Plan 635300 and being Lot 48 in Strata Plan 73943, for...